E-13567 E-080049
Decided by the Board August 14, 1953 Decided by the Board December 31, 1953
Crime involving moral turpitude — Selective Service Act of 1948, 50 U.S.C.A., Appendix 462 — Undesirable resident under section 241 (a) (17) of the Immigration and Nationality Act.
(1) A person who was convicted of failure and refusal to report for induction in violation of 50 U.S.C.A., Appendix 462, was not convicted of an offense involving moral turpitude.
(2) The mere fact of conviction for violation of the Selective Training and Service Act of 1948 does not require a finding of undesirability and, therefore, of deportability under section 241 (a) (17) of the Immigration and Nationality Act Finding the existence of a conviction must be followed by the conclusion that the conviction alone, and/or other factors make the alien an undesirable resident. In view of the circumstances peculiar to this case, such refusal and conviction are not sufficient to permit the finding that the respondent is an undesirable resident.
CHARGE:
Warrant: Act of 1917 — Crime within 5 years, to wit: knowingly failed and refused to report for induction into the military service of the United States.
BEFORE THE BOARD
(August 14, 1953)
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated above.
Respondent, a 23-year-old single male, a native and last a citizen of the Ukraine, now stateless, was admitted to the United States for permanent residence on February 21, 1950. On June 16, 1952, he was convicted for violation of 50 U.S.C.A., Appendix 462, in that he knowingly failed and refused to report for induction into the military service of the United States in violation of the orders given him by the local Selective Service Board. He was sentenced to 3½ years' imprisonment. He is now serving his sentence. Deportation is sought on the ground that he has been sentenced to imprisonment for a term of 1 year or more because of conviction in the United States of a crime involving moral turpitude, committed within 5 years after entry. The sole question before us is whether the conviction involved moral turpitude. We conclude that it does not.
Respondent registered for selective service and training on July 12, 1950. He was last classified I-A-O (conscientious objector available for noncombatant military service only). On three occasions, he was ordered to report for preinduction physical examination but refused to comply with the directives of the local board. Apparently he is of the belief that he should have been classified I-O (conscientious objector available for civilian work contributing to the maintenance of the national health, safety, or interest (32 C.F.R. 1622.11; 1622.14); for at his hearing, respondent stated that he would do work in the national interest outside the Armed Forces but would refuse to wear a uniform or become a member of the Armed Forces.
A minister with whom the respondent lived for 2 months has furnished the information that the respondent is a "good Christian with deep Biblical convictions." The minister of the church to which he belongs characterizes respondent as a good member, faithful in attendance and one who is very sincere. A petition signed by many church members reveals that the respondent is known as a person with deep Biblical convictions and one who "refused to join the Armed Forces because of his Christian beliefs."
"All crimes violate some laws; all deliberate crimes involve the intent to do so. Congress could not have meant to make the willfulness of the act a test; it added as a condition that it must be shamefully immoral" ( United States v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929). It is not the conduct of the individual in question, but the crime defined by law that determines whether a conviction involves moral turpitude ( United States ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y.), affirmed, 210 Fed. 860 (C.C.A. 7, 1914); United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933). The section under which the respondent was convicted is a broad one creating many crimes in connection with Selective Service laws; crimes, some of which we have ruled involved moral turpitude and some of which we have indicated may not ( Matter of M----, 56133/115, 1 IN Dec. 619).
The indictment and conviction reveal that proceedings against the respondent were based on that portion of 50 U.S.C.A., Appendix 462, which reads as follows:
* * * any person * * * who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.
To determine if the crime defined involves moral turpitude, we are required to consider what elements must be proven to show guilt ( United States ex rel. Mylius v. Uhl, supra). A review of decisions reveals that to establish a violation, there need be shown (1) there was actual knowledge of the existence of an obligation imposed by law, and (2) a deliberate refusal to comply with that obligation. Malignity of purpose, depravity of disposition or fraud need not be shown. The presence of motivation based on good faith and high principles are all immaterial to the issues raised by the law (see United States v. Kime, 188 F. (2d) 677 (C.A. 7)).
A violation of the law in the belief in good faith that it is unconstitutional or that it is detrimental to mankind as a whole is no defense ( Warren v. United States, 177 F. (2d) 596, cert. den. 338 U.S. 947). A finding that one who failed to report for induction has been "loyal to the United States at all times" will not prevent conviction ( Shigeru Fujii v. United States, 148 F. (2d) 298 (C.C.A. 10, 1945) cert. den., 325 U.S. 868 sub. nom. Minola Tamesa v. United States. Shigeru Fujii, a native-born citizen of the United States of Japanese ancestry, was removed from his home in California and confined behind barbed wire in a relocation center in Wyoming. While so confined, he was ordered to report for induction. He indicated his desire to fight for the United States if he were restored to his rights as a citizen and to his property, but not until then. He was convicted and was one of 63 persons convicted under similar circumstances. Conviction was upheld by the circuit court of appeals.
In United States v. Mansavage, 178 F. (2d) 812 (C.A. 7, 1949) cert. den., 339 U.S. 931, the court indicated that because one was deliberately given false advice by a Government agent to delude him into abandoning his claim as a conscientious objector would not result in making invalid an indictment charging him with failing to perform the duty of submitting to induction.
In Estep v. United States, 327 U.S. 114 (1946), and Cox v. United States, 332 U.S. 442 (1947), "the Supreme Court held that the courts are not to weigh the evidence to determine whether the classification made by the local board was justified, and that the decisions of the local boards made in conformity with the regulations are final even though they may be erroneous, if there was a basis in fact for the classification which it gave to the registrant" ( Imboden v. United States, 194 F. (2d) 508, 512 (C.A. 6, 1952); cert. den. 343 U.S. 957).
The failure of an indicted person to pursue his administrative remedies is not a bar to conviction ( Van Bibber v. United States, 151 F. (2d) 444 (C.C.A. 8, 1945)).
The case of George v. United States, 196 F. (2d) 445, 448, 449 (C.A. 9, 1952), contains a brief review of selective service laws which may be helpful in arriving at a determination herein. The Selective Service Act of 1917 exempted ordained ministers of religion, theological students, and persons belonging to religious groups whose creed forbade its members to participate in war and whose own religious convictions accorded with those of the group. In 1940, the exempted class was extended to include those individuals who were conscientious objectors by reason of religious conviction, whether or not the individual belonged to a group whose tenets forbade participation in war. The 1948 act provided that conscientious opposition to war based upon essentially political, sociological, or philosophical views or on a merely personal moral code could not be the basis for exemption from combat training and service.
While we do not condone violation of the laws of the United States, we take note that a conscientious objector by reason of nonreligious views whose convictions were so deep that he could not participate in combat training, would have no recourse but to refuse induction. There appears to be no defense such a person could raise to bar conviction under the portion of the law with which we are concerned.
Finally, it is established that immunity from service or further prosecution is not granted by reason of the fact that one has suffered one penalty and served a sentence for failure to submit to the orders of the local board on a prior occasion ( United States v. Hrabcak, 62 F. Supp. 91 (D. Wyoming); United States v. Hufford, 103 F. Supp. 859, 862 (M.D. Pa. 1952)).
In its broadest aspect, it appears to us that the law has taken cognizance of the fact that experience shows that conscientious objectors will refuse to serve in the Armed Forces even though such a duty is imposed by law; and that where the objection is based on religious grounds, the matter of conscience has been honored by providing for exemption from service even in a noncombatant capacity in the Armed Forces. It appears that the class to which exemption has been granted has been enlarged through the years so that persons who under the 1917 act would have been compelled to serve or violate the law, are today exempt. It further appears that the Nation has not as yet (and of course may never) grant such an exemption to objectors on nonreligious ground.
Recognition in the law of the refusal of religious conscientious objectors to serve on the basis of conscience, and the respect for such refusal, makes it illogical to view as a depraved act refusal of other conscientious objectors who may be just as sincere as the first group but whose bases for objection rest on nonreligious grounds.
The element just discussed; the fact that a depraved mind or purpose is not required for conviction; the possibility that conviction may be the result of ill-advice or misclassification; the fact that violation does not necessarily involve fraud and that it is an open act which of necessity is brought to the attention of law enforcement officials and which results not in evasion of service, but punishment, followed by further subjection to service-all these matters compel the conclusion that the portion of law under consideration does not define a crime which is base, vile or depraved. Since a crime involving moral turpitude is not involved, the proceedings should be terminated.
Matter of R----, A-4678936, Int. Dec. No. 411, cited by the special inquiry officer, is not applicable. Matter of R----, involved a portion of law different from the one with which we are concerned and a situation where one of the elements of the crime was fraud, a matter not involved herein.
In re Pontarelli, 393 Ill. 310, 66 N.E. (2d) 83, S.C. Ill., also cited by the special inquiry officer is not persuasive. The decision was based on the holding in the case of In re Kerl, 32 Idaho 737, 188 P. 40, 42 (1920), which involved a violation of the Espionage Act of 1917 as amended ( 40 Stat. 553), an act differing sharply in purpose from the Selective Service Act of 1917 ( 40 Stat. 76) which made it a crime to refuse to comply with Selective Service laws, a situation analogous to the instant crime and the crime committed by Pontarelli.
We believe it well to point out that the United States is not powerless to rid itself of one who has violated the Selective Service laws and is an undesirable resident. The Attorney General has such authority (Immigration and Nationality Act, Public Law 414, 82d Cong., 2d sess., sec. 241 (a) (17).) By this comment, we do not wish to imply that we have determined that respondent is undesirable. That matter is not in issue in this case.
Order: It is ordered that the proceedings be and the same are hereby terminated.
(December 31, 1953)
Discussion: Appeal from the order of the special inquiry officer finding respondent deportable on the ground stated above. Appeal will be sustained.
Respondent, a 24-year-old single male, is an alien. His only entry occurred in 1950 when he was admitted as a displaced person for permanent residence.
In 1952, he was convicted for violation of the Selective Service Act of 1948. He had been recognized as a conscientious objector by his local board which had classified him as a conscientious objector available for noncombatant military service only. Respondent stated his religious convictions could not permit him to engage in military service in any capacity. He refused to be inducted. The conviction followed. He is willing to serve under civilian direction. He is a conscientious objector on religious grounds. No question is raised as to the sincerity of his claim. Deportation of the respondent is sought on the ground that his conviction has made him an undesirable resident. Other than the refusal to serve in a noncombatant status in the military forces and his conviction for such refusal, no derogatory information appears.
Pertinent portions of the law applicable follow:
Any alien * * * shall, upon the order of the Attorney General, be deported who-the Attorney General finds to be an undesirable resident of the United States by reason of any of the following, to wit: Has been convicted of any violation of the following Acts * * * the Selective Training and Service Act of 1948 * * * (other crimes listed include interference with foreign relations; espionage; sabotage; and importation of aliens for an immoral purpose) (Section 241 (a) (17), Immigration and Nationality Act, Public Law 414, 82d Cong., 2d sess.).
Previous to the codification which the Immigration and Nationality Act represents, deportation of undesirable residents was provided for in the following manner:
Aliens of the following classes [shall be deported] if the Attorney General, after hearing, finds that such aliens are undesirable residents of the United States, to wit: [There then follow convictions concerning certain laws identical in many respects with those previously mentioned] (act of May 10, 1920; 41 Stat. 593-594; 8 U.S.C. 157)
It may be seen that there has been a change in the language used in the present act. We must now consider the effect of this change. Previous to the codification, an alien convicted of certain listed crimes became liable to deportation by reason of such conviction but was not deportable until the Attorney General found that the alien was an undesirable resident. The mere fact of conviction did not make the alien deportable ( United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950); Mahler v. Eby, 264 U.S. 32 (1924)).
Does the present act require a finding of undesirability and therefore of deportability, merely by reason of the fact of conviction? The language is subject to such interpretation. However, we believe that the legislative history clearly reveals that no change was contemplated by Congress.
Section 241 (a) (4) of Senate bill 2550, 82d Cong., 2d sess., the Senate version of the bill which subsequently became the Immigration and Nationality Act, originally provided for the deportation of an alien convicted of crime involving moral turpitude, or of an alien who "at any time after entry is convicted in the United States of any criminal offense not comprehended within any of the foregoing (crimes involving moral turpitude), if the Atorney General in his discretion concludes that the alien is an undesirable resident of the United States."
During the course of Senate debate, issue was taken with the language last quoted because it would permit the Attorney General to deport one who had been convicted of a trivial misdemeanor and because the finding of undesirability was required not as a factual matter, but was addressed to the discretion of the Attorney General (98 Cong. Rec. 5420, 5421 (1952)).
Senator Douglas made the following comment:
The phase is "in his discretion"-that is, in the discretion of the Attorney General. In other words, frequently the test is not the fact, but whether the Attorney General might with some reason conclude that deportation was proper. The Senator (Mr. Welker) has quite properly pointed out that this leaves only a very narrow question for the courts to decide on review, and the alien has almost no protection. A lawsuit is no protection if the matter to be received is as vague and variable and arbitrary as the Attorney General's conclusion about a person's undesirability (98 Cong. Rec. 5421 (1952)).
There were then offered amendments which eliminated that portion of 241 (a) (4) previously quoted and placed in its stead the provisions of section 241 (a) (17) of the Immigration and Nationality Act (98 Cong. Rec. 5758 (1952)). These amendments eliminated the discretionary power of the Attorney General to find an alien undesirable and made an alien liable to deportation only after conviction of certain specified crimes. The amendments were offered as technical refinements and minor adjustments of the bill which did not go to the substance of the measure (98 Cong. Rec. 5757 (1952)).
We read these debates as revealing the intent of Congress that no change be made in the then existing requirements that if an alien be convicted of a certain crime, he be deported only if the Attorney General find as a fact that the alien was an undesirable resident. The pertinent portions of section 241 (a) (4), as contained in the original bill, made the convicted alien deportable only if the Attorney General found him to be an undesirable resident. Congressional concern was not with the fact that the finding had to be made after conviction, but with the fact that in making the finding of undesirability, the Attorney General (and the reviewing court) was not given a standard to follow since the finding was addressed to the discretion of the Attorney General. There was no expression of dissatisfaction with the fact that conviction alone did not make an alien deportable. The very fact that Congress was concerned with the setting up of a standard implies that something more than the mere finding that a conviction existed was necessary to create deportability; for if conviction alone were necessary, the finding as to whether or not such a state exists is too simple a matter to require the establishment of a standard for the Attorney General or the courts.
We do not mean to imply that the mere fact of conviction of a listed crime is not sufficient to base a finding of undesirability. That can be done. However, merely finding the existence of a conviction is not enough; it must be followed by the conclusion that the conviction alone; and/or other factors make the alien an undesirable resident ( Mahler v. Eby, supra).
We must now determine whether the record establishes that the respondent is an undesirable resident. The respondent's claim to exemption from service in any capacity in the Armed Forces of the United States on the ground that his religious belief will permit him to serve only as a civilian under civilian direction does not make an undesirable resident. The law has created a classification permitting conscientious objectors opposed to service in the military to be inducted for civilian work contributing to the maintenance of the national health, safety or interest (32 C.F.R. 1622.14). A person in the category mentioned, is not ineligible for naturalization. He may, in good faith, take an oath of allegiance to support and defend the constitution and laws of the United States, and if a citizen, is eligible to hold high public office (sec. 337, Immigration and Nationality Act ( supra); Girouard v. United States, 328 U.S. 61; Matter of M----, 0300-440163, Int. Dec. No. 443).
It is the respondent's refusal to accept the verdict of the Selective Service Board that he is a conscientious objector, but that he does not sincerely object to service in the military forces as a noncombatant, and his conviction for such refusal which have created his difficulty. His refusal and conviction are the only derogatory items which the Service urges as requiring the finding of undesirability. In view of the circumstances peculiar to this case, we do not believe they are sufficient to permit the required finding.
Respondent is now 24 years of age. The act for which he was convicted was committed when he was 23. He had been in this country less than 2 years at that time and his knowledge of English was limited. In presenting his case to the Selective Service Board, he was without the advice of those experienced in counseling conscientious objectors. He appears to have been ignorant of the fact that he could have applied for the classification of a conscientious objector available solely for civilian service. It appears that he was ignorant of the fact that such a category existed. His attorney is of the belief that had the respondent known where to seek proper advice and assistance in presenting his application to the Selective Service Board, he might have completely avoided the difficulty in which he finds himself. For example, counsel points out that although respondent was entitled to an appeal from the action of the Selective Service Board which classified him, he apparently took no appeal. The record before us is not clear as to whether the local board considered respondent's claim for service solely in a civilian capacity. If such consideration were given, the reason for the denial is not shown.
Respondent is not a chronic violator of law. The offense in question has been his first in the United States and there is no indication that he has been in conflict with authorities abroad prior to his entry. His crime does not involve moral turpitude. Respondent has made no efforts to avoid the consequences of his act. It does not involve any ill will toward any individual or desire to harm this country. Respondent asserts his love for the United States and his awareness that he has obligations to this country. His actions are not incompatible with devotion for this country and the principles on which it was founded and endures. He states that he is willing to be drafted in a civilian capacity. He is still of draft age. He is said to be eligible for parole and will undoubtedly be given additional opportunity to comply with the Selective Service laws. He is now represented by competent counsel. Unless he is ordered deported, he will have an opportunity to thoroughly present his claim before the proper authorities.
Respondent has been self-supporting while in the United States. He is well regarded in his neighborhood and the many members of his church and two ministers have written concerning the sincerity of his stand.
Claims to exemption from combat service on grounds of religion or conscience are often decided in highly emotional atmospheres which are not conducive to a dispassionate appraisal of the claim. That such an adjudication constitutes "a very difficult task" and one in which the "factor of error" resulted in hardships, was stated in a report adopted by President Truman, who on December 23, 1947, restored certain persons convicted of violating the Selective Training and Service Act of 1940, to political, civil, and other rights they were deprived of by reason of the conviction, and pardoned them. Counsel points out that in 1933, President Roosevelt granted amnesty to violators of the Draft Act of 1917. He states that he has every reason to believe that in due course, amnesty will be granted to violators of the Selective Service Act of 1948.
We do not find that the record before us establishes that the respondent is an undesirable resident of the United States. Proceedings will be terminated.
Order: It is ordered that proceedings be and the same are hereby terminated.